Execution of Decree

(Sec.36 to 74 & Order- XXI)

By
Dr. Vivek Kumar
Execution: General Provisions
(O-21 & Sec.36 to 74)
 Introduction
• When a Court passed decree in favour of plaintiff,
it is expected that defendant should obey orders
of Court. But if defendant does not obey such
orders, plaintiff has to institute application for
execution proceeding to enforce and implement
decree passed by the Court. In execution
proceedings, person who institute application for
execution proceeding in accordance with the
judgment is known as ‘decree holder’ and
opponent is known as ‘judgment debtor’.
 Powers of Court to enforce execution
Sec. 51- on the application of the decree-holder (Sec. 46 &
36), the Court may order execution of the decree-
• (a) by delivery of any property specifically decreed,
• (b) by attachment and sale or by the sale without attachment
of any property,
• (c) by arrest and detention in prison for such period not
exceeding the period specified in section 58,
• (d) by appointing a receiver, or
• (e) in such other manner as the nature of the relief granted
may require
 Powers of the Court in executing transferred
decree
Powers of Court shall include the following
powers of the Court passed the decree, Sec. 42(2),
• a. Power to send the decree for execution to
another Court under Sec. 39,
• b. Power to execute the decree against the legal
representative of the deceased judgment-debtor
under Sec. 50,
• c. Power to order attachment of a decree (Order
XXI Rule 53).
 Garnishee order
• Precept :Precept means, an order or direction given by one
Court to another requiring some act to be done. (Sec 46-
Precepts to executing court)
• Garnishee order: Garnishee means, judgment debtor’s debtor.
Garnisher means the decree holder, who initiates the
garnishment proceeding to get property in possession of the
garnishee. On application made by the creditor (decree holder),
issue notice to the garnishee to pay such debt due from him
either in Court to satisfy decree or appear and show cause why
he should not do so. (Order XXI Rule 46A- notice to garnishee).
Payment made by garnishee on notice, shall be a valid
discharge to him as against judgment debtor.
 Question to be determined by the Court
executing decree:
• Court executing decree shall determine all questions
relating to (Sec.47)-
• i. Execution,
• ii. Discharge, or
• iii. Satisfaction of the decree.
• -Court executing decree cannot go behind the
decree:
• As a general rule, Court executing decree cannot go
behind the decree to find legality or correctness.
 Modes of Execution of a Decree:
• The Court may on the application of the decree holder,
order execution of the decree. The main modes of
executing a decree (power of executing court Sec. 51) are:
• 1. By delivery of any property specifically decreed,
• 2. By attachment and sale or by the sale without attachment
of any property,
• 3. By arrest and detention in prison,
• 4. By appointment of receiver, or
• 5. In such other manner as the nature of the relief granted
may require.
 Modes of executing different types of Decree:
Delivery, attachment, sale, detention in civil prison and appointment of receiver are the main modes
of execution of decree. One or more mode may be used by the Court executing a decree as-
• i. Decree for payment of money-(Order XXI Rule 30): A decree for money including payment for
money in alternative may be executed by the detention in the civil prison of the judgment debtor, or
by the attachment and sale of his property or both.
• ii. Decree for specific movable property- (Order XXI Rule 31): Decree for specific movable property or
share in it, may be executed by the seizer and by delivery to the party, or by detention in civil prison or
by attachment of property or by both.
• iii. Decree for specific performance or for an injunction- (Order XXI Rule32): Decree for specific
performance of contract or injunction may be enforced by detention in civil prison, or by attachment
of property or by both.
• iv. Decree for restitution of conjugal rights- (Order XXI Rule 33)- Decree for restitution of conjugal right
may be enforced against husband by attachment of property. If the order of the Court is not obeyed
periodical payments as may be just, may be ordered.
• v. Decree for execution of document or endorsement of negotiable instrument- (Order XXI Rule 34):
Decree holder may prepare draft of the document and deliver it to the Court. After considering the
objections raised by the judgment debtor, Court may approve draft or alter it and then executed upon
proper stamp papers.
• vi. Decree for immovable property- (Order XXI Rule 35): Possession thereof shall be delivered the
party to whom it has been adjudicated, by removing any person bound by the decree who refuses to
vacate the property.
 Execution by Arrest and Detention
•  Section 51(c) read with Sec.55, 58 & 59, (Order XXI Rule 37-40):-
-Object of arresting a judgment debtor and detaining in civil prison is not to punish him but to create a
force or create burden so that he should obey decree.
-Grounds for arrest and detention- (proviso of Sec. 51)
• a. That the judgment-debtor, with the object or effect of obstructing or delaying the execution of the
decree,
i. Is likely to abscond or leave the local limits of the jurisdiction of the Court, or
ii. Has, after the institution of the suit in which the decree was passed, dishonestly transferred,
concealed, or removed any part of his property, or committed any other act of bad faith in relation to his
property, or
• b. That the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of
the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the
same, or
• c. That the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to
account.
-Duration of detention- (Sec.58)
Every person detained in the civil prison in execution of a decree shall be so detained,
• a. Where the decree is for the payment of a sum of money exceeding five thousand rupees, for a period
not exceeding three months, and
• b. Where the decree is for the payment of a sum of money exceeding two thousand rupees, but not
exceeding five thousand rupees, for a period not exceeding six weeks.
• C. No Order for detention payment of a sum of money not exceeding two thousand.
Execution: Attachment of Property in
Execution of Decree, Section 60 to 64
& Section 51(b), Order XXI- Rules 41
to 57.
 Attachment of Property in Execution of
Decree, Section 60 to 64 & Section 51(b),
Order XXI- Rules 41 to 57.  
Introduction
The code recognizes the right of the decree-holder
to attach the property of the judgment debtor where the
judgment debtor denies the order of the court
in execution proceeding and lays down the procedure to
effect attachment as to which property is liable to attach and
which not are dealt under Sections 60 to 64. Section 51(b)
deals with the power of court to attach the property while
executing the decree and Rules 41 to 57 of Order XXI deals
with the procedure to subject of attachment of property in
execution of decree.
Execution by Attachment: Section 60 to 64

• Section-60- Property liable to attachment and

sale in execution of decree.
• Section-61- Partial exemption of agricultural
produce 
• Section-62- Seizure of property in dwelling-house  
• Section-63- Property attached in execution of
decrees of several Courts 
• Section-64- Private alienation of property after
attachment to be void.
 Execution By Attachment : Order XXI- Rules
41to57
• Rule- 41- Examination of judgment-debtor as to his property
• Rule- 42- Attachment in case of decree for rent or mesne profits or other matter, amount of which
to be subsequently determined
• Rule- 43- Attachment of movable property other than agricultural produce in possession of
judgment-debtor
• Rule- 44- Attachment of agricultural produce
• Rule- 45- Provisions as to agricultural produce under attachment
• Rule- 46- Attachment of debt, share and other property not in possession of judgment-debtor
• 46A- Notice to garnishee
• 46B- Order against garnishee
• 46C- Trial of disputed questions
• 46D- Procedure where debt belongs to third person
• 46E- Order as regards third person]
• 46F- Payment by garnishee to be valid discharge
• 46G- Costs
• 46H- Appeals
• 46I- Application to negotiable instruments
• Rule- 47- Attachment of share in movables
• Rule- 48- Attachment of salary or allowances of servant of the Government or
railway company or local authority
• 48A- Attachment of salary or allowances of private employees
• Rule- 49- Attachment of partnership property
• Rule- 50- Execution of decree against firm
• Rule- 51- Attachment of negotiable instruments
• Rule- 52- Attachment of property in custody of Court or public officer
• Rule- 53- Attachment of decrees
• Rule- 54- Attachment of immovable property
• Rule- 55- Removal of attachment after satisfaction of decree
• Rule- 56- Order for payment of coin or currency notes to party entitled under
decree
• Rule- 57- Determination of attachment
 Execution by Attachment
Execution by Attachment : Section 51(b)
• Attachment of property is an act or process of taking, apprehending or
seizing property of a person by judicial order. Where the judgment debtor
is not obeying decree, decree holder can make application to the Court
for issuing order to attach property of judgment debtor.
• Section 51(b) expresses the power of court to enforce execution of
decree by attachment of any movable/ immovable property.

Execution by Attachment Section -60:

Which property can be attached? [Section 60 (1)]
• According to Section 60 (1) specifically land, houses, buildings, goods
money, Gov. securities, bonds, shares, bank notes, cheques etc., all other
saleable property, movable or immovable, belonging to the judgment-
debtor, or over which, or the profits of which, he has a disposing power
which he may exercise for his own benefit can be attached.
 Property which cannot be attached, Section 60 (1)
proviso:
• a) The necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-debtor, his wife
and children, and such personal ornaments as, in accordance with religious usage, cannot be parted
with by any woman;
• b) Tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry
and such cattle and seed-grain as may, in the opinion of the Court, be necessary to enable him to earn
his livelihood as such, and such portion of agricultural produce or of any class of agricultural produce
as may have been declared to be free from liability under the provisions of the next following section;
• c) Houses and other buildings (with the materials and the sites thereof and the land immediately
appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer or
a domestic servant and occupied by him;
• d) Books of account;
• e) A mere right to sue for damages;
• f) Any right of personal service;
• g) Stipends and gratuities allowed to pensioners of the government or of a local authority or of any
other employer or payable out of any service pension fund notified in the Official Gazette by the
Central Government or the State government in this behalf, and political pension;
• h) The wages of labourers and domestic servants, whether payable in money or in kind;
• i) Salary to the extent of the first one thousand rupees and two third of the remainder in execution of
any decree other than a decree for maintenance. ia) one-third of the
salary in execution of any decree for maintenance;
• j) The pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or the Army
Act, 1950 (46 of 1950), or the Navy Act (62 of 1957), applies;
• k) All compulsory deposits and other sums in or derived from and fund to which the Provident
funds Act, 1925, (19 of 1925), for the time being applies in so far as they are declared by the said
Act not to be liable to attachment;
• ka) All deposits and other sums in or derived from any fund to which the Public Provident Fund
Act, 1968 (23 of 1968) for the time being applies in so far as they are declared by the said Act as
not to be liable to attachment;
• kb) All moneys payable under a policy of insurance on the life of the judgment-debtor;
• kc) The interest of a lessee of a residential building to which the provisions of law for the time
being in force relating to control of rents and accommodation apply;
• l) Any allowance forming part of the emoluments of any servant of the Government or of any
servant of a railway company or local authority which the appropriate Government may by
notification in the Official Gazette declare to be exempt from attachment, and any subsistence
grant for allowance made to any such servant while under suspension;
• m) An expectancy of succession by survivorship or other merely contingent or possible right or
interest;
• n) A right to future maintenance;
• o) Any allowance declared by any Indian law to be exempt from liability to attachment or sale in
execution of a decree; and
• p) Where the judgment-debtor is a person liable for the payment of land-revenue; any movable
property which, under any law for the time being applicable to him, is exempt from sale for the
recovery of arrears of such revenue.
EXECUTION BY SALE:
Section 51(b), 65 & 67 and Order XXI- Rules
64 to 96
 EXECUTION BY SALE:
Section 51(b), 65 & 67 and Order XXI- Rules 64 to 96
Introduction
The code recognizes the right of the decree-holder to sale the property of the judgment
debtor after attachment or without attachment of the property of the judgment debtor
in execution proceeding and lays down the procedure to effect sale to recover the
required debt money according to the amount declared by the decree. Sections 65 & 67
along with Section 51(b) and Rules 64 to 96 of Order XXI deals with the subject relating
to sale of movable and immovable property in execution of decree.
Section 51 (b) and Section 65 Powers of Court to enforce execution and Purchaser's title
• Section 51 (b) – (Powers of Court to enforce execution)- The Court may, on the application
of the decree-holder, order execution of the decree by attachment and sale or by sale
without attachment of any property.
• Where judgment debtor is not obeying money decree, his property may be sold to satisfy
decree. A property which has been attached may be sold or a property may be sold
without attachment also.
• Section 65 - Purchaser's title-Where immovable property is sold in execution of a decree
and such sale has become absolute, the property shall be deemed to have vested in the
purchaser from the time when the property is sold and not from the time when the sale
becomes absolute.
 Section 67- Power for State Government to make rules as to sales of land
in execution of decrees for payment of money
• (1) The State Government may, by notification in the Official Gazette, make rules for any
local area imposing conditions in respect of the sale of any class of interests in land in
execution of decrees for the payment of money, where such interests are so uncertain or
undetermined as, in the opinion of the State Government, to make it impossible to fix
their value.
• (2) When on the date on which this Code came into operation in any local area, any
special rules as to sale of and in execution of decrees were in force therein, the State
Government may, by notification in the Official Gazette, declare such rules to be in force,
or may by a like notification, modify the same. Every notification issued in the exercise of
the powers conferred by this sub­section shall set out the rules so continued or modified.
• (3) Every rule made under this section shall be laid, as soon as may be after it is made,
before the State Legislature.
Conduct of Sale
• The sale is conducted by any officer authorised by the Court by way of public auction.
Notice is given to judgment debtor and then after a proclamation is drawn. Proclamation
shall state the intended sale of property in execution, time and place of auction sale,
description of the property, estimated value of property, revenue assessed upon it, any
encumbrance on it and the amount to be recovered. When immovable property is sold by
public auction, the purchaser shall pay immediately a deposit of 25% of purchase amount.
 Proceedings of sale
• Proceeding of sale Shall be used for -
• 1. In defraying the expenses of the sale,
• 2. In discharging the amount due under the decree,
• 3. In discharging the interest and principal moneys due on subsequent encumbrances (if any),
• 4. In discharging ratably among the holders of decrees for the payment of money against the judgment
debtor, who have, prior to the sale of the property, applied to the Court which passed the decree
ordering such sale for execution of such decrees, and have not obtained satisfaction thereof.
• Provision in general, sale of movable and immovable property are provided under rules from 64 to 96
of Order XXI.

Sale Generally: Order XXI, Rules- 64 to 73 

• Rule 64. Power to order property attached to be sold and proceeds to be paid to person entitled.
• Rule 65. Sales by whom conducted and how made
• Rule 66. Proclamation of sales by public auction
• Rule 67. Mode of making proclamation
• Rule 68. Time of sale
• Rule 69. Adjournment or stoppage of sale
• Rule 71. Defaulting purchaser answerable for loss on re-sale
• Rule 72. Decree-holder not to bid for or buy property without permission
• Rule 72A. Mortgagee not to bid at sale without the leave of the Court
• Rule 73. Restriction on bidding or purchase by officers
  Sale of Movable Property: Order XXI, Rules-74 to 81
• Rule 74. Sale of agricultural produce….
• Rule 75. Special provisions relating to growing crops….
• Rule 76. Negotiable instruments and shares in corporations….
• Rule 77. Sale by public auction….
• Rule 78. Irregularity not to vitiate sale, but any person injured may sue….
• Rule 79. Delivery of movable property, debts and shares….
• Rule 80. Transfer of negotiable instruments and shares….
• Rule 81. Vesting order in case of other property….

Sale of immovable property: Order XXI, Rules- 82 to 88

• Rule 82. What Courts may order sales….
• Rule 83. Postponement of sale to enable judgment-debtor to raise amount of decree….
• Rule 84. Deposit by purchaser and re-sale on default….
• Rule 85. Time for payment in full of purchase money….
• Rule 86. Procedure in default of payment….
• Rule 87. Notification on re-sale….
• Rule 88. Bid of co-sharer to have preference….
 Setting aside sale Application (Rules 89 to 92)
To set aside sale in execution may be made by any person claiming an interest in the
property, decree holder, purchaser, or any other person entitled to rateable interest in
the property. Rules 89 to 92 deals with Setting aside of sale, an application to set aside
sale cannot be made on any other ground not covered by these rules. The grounds and
the persons who may apply for Setting aside sale are covered under rules 89 to 92 are:--

Set Aside Sale and Delivery of Property (Rule 89 to 96)

Set Aside Sale :
• Rule 89. Application to set aside sale on deposit ….
• Rule 90. Application to set aside sale on ground of irregularity or fraud ….
• Rule 91. Application by purchaser to set aside sale on ground of judgment-debtor having
no saleable interest ….
• Rule 92. Sale when to become absolute or be set aside ….
---------------
• Rule 93. Return of purchase-money in certain cases ….
• Rule 94. Certificate to purchaser ….
Delivery of Property :
• Rule 95. Delivery of property in occupancy of judgment-debtor ….
• Rule 96. Delivery of property in occupancy of tenant ….
Thank you